Can Arkansas apply the state employee 30-working-day break rule to a teacher who changes school districts?

Plain-English summary

Richard Weiss, Arkansas's Director of Finance and Administration, asked whether the Office of Personnel Management (OPM) could deny a teacher's sick leave transfer when more than 30 working days passed between leaving one school district and joining another. OPM used that cutoff for state employees transferring between agencies and proposed applying it to public school employees for consistency.

The AG's answer was probably no. The state employee law allows a transfer of sick leave only when the employee moves “without a break in service.” The teacher law states no comparable limit. Both laws were enacted in the same General Assembly session. The AG reasoned that lawmakers knew how to state a break requirement and had chosen not to put one in the teacher law. He found no compelling reason to read it into the text.

The opinion answers whether OPM could import its 30-working-day policy from the state employee law. It does not declare a different numerical cutoff for teachers or decide an individual teacher's leave balance.

What this means for you

School district personnel staff

The AG said applying OPM's state employee break rule to the teacher law would probably be improper. Check the applicable teacher statute and the circumstances of the requested transfer rather than assuming the state employee cutoff governs.

Teachers changing districts

The opinion identifies no break-in-service limit in the teacher law and says the state employee limit should probably not be borrowed. It does not calculate the leave due in a particular transfer.

Currency note

This opinion was issued in 2013. Check current law and personnel rules before applying its analysis to a later transfer.

Common questions

Why did OPM propose 30 working days?
OPM told the AG it used that rule for state employees moving between state agencies and wanted consistent treatment for public school employees.

Did the AG find a 30-day rule in the teacher law?
No. The opinion says the teacher law does not expressly limit the time between leaving one district and joining another.

Did the AG say teachers can wait any length of time?
The AG answered only whether OPM could import the state employee rule. He did not state a separate limit or decide every possible delay.

Background and statutory framework

The state employee law required transfer “without a break in service.” The teacher law did not use that language. The AG treated the difference as evidence that the General Assembly meant to treat the two groups differently, because it enacted the laws in the same session and expressed a limit in only one of them. He applied the principle that courts do not add a missing statutory condition without clear evidence that the omission would frustrate legislative intent.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DUSTIN McDANIEL

Opinion No. 2013-129

March 18, 2013

The Honorable Richard A. Weiss, Director
Department of Finance and Administration
1509 West Seventh Street, Suite 401
Post Office Box 3278
Little Rock, Arkansas 72203-3278

Dear Mr. Weiss:

This is my opinion on your question about a law that lets teachers keep unused sick leave when changing school districts. Your question concerns a teacher leaving one district but not immediately starting with another.

As you note, the law does not state a limit on the time that may pass between the teacher's leaving one district and joining another. You compare the law to one that lets a state employee keep sick leave when transferring between state agencies "without a break in service." You state:

The Office of Personnel Management policy is that if a state employee transferring between state agencies has a break in service for more than 30 working days then the sick leave will not transfer. For consistency, OPM would establish the same 30 working day time period for public school employees and requests your opinion on whether this is proper application of the law.

Your question, as I understand it, is whether OPM's proposed interpretation — the denial of sick-leave transfer if a teacher has a break in service of more than 30 working days — is proper application of the law.

RESPONSE

In my opinion, the answer to your question is probably "no."

While the two laws you cite are similar, they differ in an important respect already noted: the state-employee law lets a transferring employee keep sick leave only when the transfer is "without a break in service." The teacher law, on the other hand, does not expressly limit teachers' rights similarly. Nor do I see a compelling reason to read such a limit into the law.

These laws were enacted in the same session of the General Assembly, whose express limit on state-employee rights and simultaneous omission of a similar limit on teacher rights may evidence legislative intent to treat the two groups differently. The state-employee law demonstrates that the General Assembly knew how to and did limit sick-leave-retention rights by express provision when it deemed that appropriate. That it did not state a limit in the teacher law I take to evidence a lack of intent to impose the limit stated in the state-employee law. Absent clear evidence that an omission will frustrate legislative intent, courts will not read into a statute a provision not included by the General Assembly. I see no such clear evidence here and so conclude that a court would not read a no-break-in-service rule into the teacher law. It follows, in my view, that interpreting the teacher law in the same way as a law that contains a no-break-in-service rule probably would be improper.

Assistant Attorney General J. M. Barker prepared this opinion, which I approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM:JMB/cyh